Calcutta High Court
State Of West Bengal And Ors vs Arun Agarwal on 21 January, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Asim Kuamr Ray
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELALTE JURISDICTION
IN AN APPEAL ARISING OUT OF
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
A.P.O. No. 247 of 2010
W.P. No. 1299 of 2009
G.A. No. 1928 of 2010
STATE OF WEST BENGAL AND ORS.
VS.
ARUN AGARWAL
BEFORE:
The Hon'ble Mr. Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Mr. Justice ASIM KUAMR RAY
For State : Mr. Murari Mohan Das, Senior Advocate.
Mr. Tanusri Pal Chowdhuri, Advocate.
For Respondent : Mr. Kalyan Kr. Bandapadhyay, Sr. Advocate.
Mr. Debabrata Saha Roy, Advocate.
Mr. Pingal Bhattacharya, Advocate.
Mr. R.K. Mukhopadhyay, Advocate.
Heard on : 24.08.2010. Judgment on : 21.01.2011 PINAKI CHANDRA GHOSE, J.: This appeal is directed against a Judgment
and/or Order dated 29th April, 2010 passed by the Hon'ble Single Judge in W.P. No. 1299 of 2009 whereby His Lordship was pleased to allow the writ petition on the ground that the respondent/appellant herein acted arbitrarily1 and His Lordship held as follows:-
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"39.Under such circumstances, can there be any doubt that in this case that some of the officers of the state have attempted to make a broth by themselves spinning their own so called 'magic wand' thereby attempting to create a situation to foster their own causes without following the due process of law? The answer would be, yes, they have.
40.This, therefore, is clear case of an extremely arbitrary exercise of power which is hit by Article 14 of the Constitution of India. Under such circumstances, this court, therefore, has no option but to allow the writ petition and quash the Orders dated 14.02.2009 passed by the appellate authority. As a result, this court also quashes the order dated 17.06.2009 and decaes that the enquiry, search and seizure conducted by the two joint directors on 08.11.2008, was clearly illegal, arbitrary and in violation of law and therefore, this court also hold them responsible for committing such an illegality, and accordingly, fastens responsibility upon them."
Being aggrieved, the State has filed this appeal challenging the said Judgment and Order dated 29th April, 2010.
The facts of the case briefly are as follows:-
The writ petitioner is a handicapped person who is granted a Fair Price Shop Licence under the Ballygunge Sub Area, Kolkata being Fair Price Shop (FPS) No. 2988.3
On 7th November, 2008 the Area Inspector (F&S) took physical measurement of stocks lying in petitioner's said shop and checked all books of accounts and thereafter endorsed satisfactory note in the inspection book.
On 8th November 2008 two Joint Directors of Rationing, Kolkata South and Kolkata North visited and inspected the said shop of the writ petitioner whereupon the Joint Director of Rationing, Kolkata South endorsed a note in petitioner's inspection book and seized almost all the books of accounts in absence of any witness. According to the writ petitioner a Seizure List was prepared but in the absence of any independent witnesses.
It is further the case of the writ petitioner that although the Inspection Team constituted of two Joint Directors, the Joint Director, Kolkata North refuses to put his signature on both the Seizure List as well as on the Inspection Book. The Cash Memo books which were directed to be produced used upto 9th November 2008 and the daily Sale Register along with a detailed Representation dated 10th November 2008. The writ petitioner raises objections with regard to the search, seizure as well as the enquiry made by the said authorities.
On 17th November 2008 a show cause cum suspension order was issued by the Director of Rationing, West Bengal. Since the suspension order was issued without giving a chance to the writ petitioner to give a reply to the Show Cause notice the writ petitioner filed a writ petition being WP No 28644 (W) of 2008 4 before this Hon'ble Court and the said writ petition was disposed of by setting aside the order dated 26th November 2008. With liberty to the respondent to take steps against the petitioner in accordance with law by providing all the documents and papers including the report as referred to in the Show Cause notice.
However, on 11th December 2008 on the self same ground second Show Cause notice and an Order of Suspension issued to the writ petitioner. Hence, the writ petitioner filed a second writ petition being W.P. No. 1846 (W) of 2008 before this Court. On 9th January 2009 on the same day, i.e. 9th January 2009 a Memo No. 16/ L&L DR dated 7th January 2009 was served upon the writ petitioner informing him that his Licence had been cancelled. The said fact was brought to the notice of the Court in a pending appeal and produces the Order of Cancellation of the licence dated 7th January 2009. The appeal preferred by the writ petitioner was withdrawn and the writ petitioner was granted liberty to challenge the fresh cause of action as a result whereof the writ petitioner filed a writ petition being No WP 36 of 2009. The same was disposed of by the Hon'ble Single Judge by setting aside the order dated 7th January 2009 with a direction to the Director of Rationing (WB) to take a fresh decision after giving a reasonable opportunity to the writ petitioner and further to pass a reasoned order. But during the pendency, the licence was deemed to remain under suspension. 5
On 22nd April 2009 the Joint Director of Rationing-cum-officer-in-charge, directed the petitioner to appear before him on 19th May 2009.
Thereafter, on the direction of the Joint Director of Rationing, the petitioner appeared before him and submitted a detailed and exhaustive written reply on 19th May 2009. On 17th June 2009, the Director of Rationing, West Bengal passed the order canceling the licence of the writ petitioner. The writ petitioner filed a statutory appeal on 6th July 2009 before the Appellate Authority and since did not receive any result. The writ petitioner filed a further writ petition being No WP 824 of 2009 before this Court which was disposed of on 21st August 2009 when the Court directed the State to dispose of the appeal within a period of 4 months. The writ petitioner did appear before the Appellate Authority on 25th November 2009, as directed, and duly submitted short notes of arguments. On 14th February 2009 the Appellate Authority passed an order upholding the order of termination dated 17th June 2009.
The writ petitioner filed a 5th writ petition challenging the said Order dated 14th February 2009 passed by the Court setting aside such order on the ground as narrated before us by Mr. Murari Mohan Das, learned Senior Advocate, appearing on behalf of the appellants. He submitted that the Learned Trial Judge set aside the order on the ground that at the time of seizure of ration articles in course of inspection conducted on 7th November 2008 as provided in paragraph 25 (2) of the West Bengal Public Distribution System (Maintenance and Control) 6 Order 2003 (hereinafter referred to as 'the said order of 2003'), the authorities did not verify the procedure as laid down in Section 100 of the Code of Criminal Procedure 1973.
It is submitted that in paragraph 25 (2) of the said order of 2003 is merely a directory but not mandatory and in spite thereof the Court held that the said provision is mandatory and not directory.
Mr. Murari Mohan Das, learned Senior Advocate appearing on behalf of the appellant submitted that although non-compliance of Section 100 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) at the time of search and seizure as provided in Para 25 (2) of the said order of 2003, that would not vitiate the proceedings, even if it is held that the said paragraph 25(2) of the said Order of 2003 is mandatory to follow the provision of Section 100 of the Cr.P.C.
Therefore, according to him, the Court wrongly interpreted the said provisions and came to a finding which cannot be accepted at all. He further contended that if any seizure is made without following the said provision, that would vitiate the entire proceeding. But since 1963 the Apex Court held that for procedural defect no such search and seizure would stand vitiated.
In support of his contention Mr. Das relied upon the decision in the case of Radha Kishan Vs State of Uttar Pradesh reported in AIR 1963 SC 822 where 7 the Hon'ble Supreme Court held that the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search that could be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure.
He also relied upon the following decisions :-
1. AIR 1968 SC 1517 (Sheonath Prasad Vs. State of Bihar);
2. AIR 1980 SC 593 (State of Maharashtra Vs. Natwarlal Damodardas Soni);
3. 1971 (1) SCC 767 (Babu Lal Hargovindas Vs. The State of Gujarat).
He submitted that when no independent witness is available then the seizure cannot be declared as bad or would vitiate the whole proceedings.
He further submitted that the High Court cannot re-examine the evidence for satisfying itself as to the correctness or otherwise in respect of the conclusion reached by the appropriate authority.
Hence, he submitted that the Trial Court has decided the question wrongly and the judgment and/or order was passed by His Lordship should be set aside.
Mr. Das also relied upon the following decisions:-
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1. 1970 (3) SCC 779 (Tej Bahadur Sing Vs The State of Uttar Pradesh);
2. AIR 1956 SC 411 (Sunder Singh Vs. State of Uttar Pradesh);
3. 2009 (6) SCC 735 (Ram Deen Maurya (Dr.) Vs. State of Uttar Pradesh & Ors.);
4. 2005 (11) SCC 600 (State (NCT of Delhi) Vs. Navjot Sandhu).
In the case of Sunder Singh (supra) the Hon'ble Apex Court held that assuming that the witnesses who actually witnessed the search were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence in support of the search and the recovery. Therefore, non-compliance of Section 103 would not affect the legality of the proceedings. It would only affect the weight of evidence.
In the case of Ram Deen Maurya (Dr.) (supra) where the Hon'ble Supreme Court held as follows :
"It is true, in Rule 4(6) of the Rules, the rule-making authority has used the expression "shall" and the word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall" need not be given that connotation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. While interpreting the provisions concerned, regard must be had to the content, subject-matter and object of the statute in question".9
In the case of P.T. Rajan (supra) where the Supreme Court held as follows :-
"45. A statute as is well known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependent on the user of the words "shall" or "may". Such a question must be posed and answered having regard to the purpose and object it seeks to achieve."
In the case of Tej Bahadur Sing (supra) where the Supreme Court held that outsiders attested the Panchnama contrary to Section 103 Criminal Procedure Code, was only an irregularity not affecting the legality of the proceedings.
On the contrary, Mr. Kalyan Kr. Bandapadhyay, learned Senior Advocate appearing on behalf of the respondent, submitted that in the case of Collector of Monghyr and Ors. Vs. Keshav Prasad Goenka and Ors. reported in AIR 1962 S.C. page 1694 (Para 12) at page 1701 that the Court held that the question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences, of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirements are insisted on as a protection for safeguarding the right and liberty of a person or of property in respect of which the action might involve.
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He contended that the requirement as provided in paragraph 25 (2) of the said order is mandatory and he further contended that the orders which were passed by the authorities without following the statutory condition precedents which are to be followed before passing an order. Therefore, he contended that this order so passed by the authorities vitiates the whole proceedings. He submitted that the said order can not be given effect to.
In support of his contention he relied on P.T. Rajan Vs TPM Sahir and Ors. reported in AIR 2003 (8) SCC page 498 in support of his said contention.
He further relied on the decision of Gurmit Singh Vs. State of Punjab reported in 1998 CRI.L.J. 4696 and in the case of Man Bahadur Vs. State of Himachal Pradesh) reported in 2009 CRI. L. J. 391 where the Court held that the search was conducted before the sun rise, failure on the compliance with the provisions of the proviso to Section 42 (1) of the Narcotic Drugs and Psychotropic Substances Act certainly affects the prosecution case and vitiate the trial.
After hearing the learned counsel for the parties and after perusing the facts of this case as placed before us it appears to us that on 7th November, 2008 the Area Inspector (F& S) Ballygunge Ration Office visited the petitioner's shop after closing the sale of rationed articles and took physical measurement of the stock-in-trade, verified the same with the Sale Register, Stock Register and Cash 11 Memos and made a satisfactory endorsement on the petitioner's Inspection Book. On the very next day i.e. on 8th November, 2008, two Joint Directors visited the shop of the writ petitioner and one of the Joint Directors made a note on the Inspection Book alleging that the writ petitioner on demand had failed to produce the Cash Memo Books. The said Joint Director also made a note that the Stock- cum-Rate-Board of the petitioner's fair price shop was found blank and it was further alleged that the petitioner had not stocked rice, wheat, in separate stocks. Before leaving, the said Joint Director also seized the Books of Accounts with instructions to produce Cash Memo books and daily sale register on the next working day i.e. 10th November, 2008. It is further stated that the seizure list was prepared without any independent witness.
From the facts it appears that other Joint Director had refused to put his signature on the Inspection Book as well as on the Seizure List. The writ petitioner states that the search and seizure and the enquiry was totally illegal and a representation was filed before the authority. The Joint Director of Rationing, West Bengal on 17th November, 2008, issued a show-cause-cum- suspension order.
After considering the facts of the case and the documents placed before us it appears to us that the writ petitioner has visited this writ Court on number of occasions and the writ petitions were filed in respect of the orders so passed by the authorities which were set aside by the Court. The order of show-cause 12 notice-cum-suspension order dated 17th November, 2008 suspending the licence of the petitioners were further suspended on self-same allegation and being aggrieved the writ petitioner filed a second writ petition of the petitioner being W.P. No.1846 (W) of 2008 and the licence of the petitioner had been cancelled by a Memo dated 7th January, 2009 and in fact the said cancellation of licence was also dealt with by the Court when a 3rd writ petition was filed being W.P. No. 36 of 2008 and the Court set aside the said order dated 7th January, 2009 and directed the Director of Rationing, West Bengal to take a fresh decision after giving a reasonable opportunity to the petitioner and directed to pass a reasoned order. During the pendency of the said matter it was further directed that the licence was deemed to remain under suspension.
It appears that the writ petitioner did appear before the Authority on the date of hearing with his lawyer and the Director of Rationing, West Bengal refused to allow him to have the help from the said learned lawyer. Further the Director of Rationing, West Bengal passed an order dated 17th June, 2009, canceling the licence of the petitioner. Hence, the 4th writ petition being W.P. No. 824 of 2009 which was disposed of by the Court by directing the State to dispose of the appeal so filed by the writ petitioner before the Appellate Authority. The Appellate Authority upholding the order of termination dated 17th June, 2009 and hence the 5th writ petition being the present writ petition was filed and the Court came to the conclusion that the authority did not comply with the paragraph 25(2) of the 2003 Control Order under the said Control Order which 13 has been specifically stated that the provisions of Section 100 of the Code of Criminal Procedure, 1973 relating to search and seizure shall apply.
The Hon'ble Single Judge held that since there was non-compliance of Section 100 the order dated 12th August, 2009, suspending the licence of the writ petitioner stands quashed and the authorities were directed to initiate fresh proceedings strictly in accordance with the law.
Section 100 of the Code of Criminal Procedure is set out herein for our ready reference:
"100. Person in charge of closed place to allow search. -
(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing he warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a women, the search shall be made by another woman with strict regard to decency.14
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to hi, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).
The learned Trial Court held, after analyzing paragraph 25(2) of the Control Order, which reads as follows :
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"25(2). The provisions as contained in Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this paragraph".
The Court held that whether a provision is mandatory or directory, the word "shall" or "may" may not always be a guiding factor but they have to be considered in the context and purpose for which such a provision has been made and the Courts must see the purpose behind inserting such words.
Hence, the learned Trial Court held as follows :
"32. In the opinion of this Court, the purpose for which such a provision like Para 25(2) of the Control Order of 2003 was made was in the context of keeping in mind that arbitrary actions of the State should not be encouraged. A Division Bench of this Court has gone a step further while interpreting a provision as to whether it is Mandatory or Directory by keeping in mind that the guiding factor should be also the beneficial purpose for whom the Rule is made. This was considered by a Judgment delivered by a Division Bench of this Court in WPCT 210 of 2008 on 19.8.2009. A photocopy of the said Judgment was produced by the learned Counsel for the petitioner during arguments. The relevant portions thereof are quoted below :
"Having regard to the language used in the said Index no. 1033, the regulation, the issue now is required to be considered 16 whether that provision is a mandatory provision or directory provision. To test a provision whether mandatory or directory, the use of the word 'shall' or 'may' is not a guiding factor, but the main guiding factor is context and purpose for which the provision has been made and the beneficial purpose for whom it is made. By a Constitution Bench judgment passed in the case Collector of Monghyr & Ors. vs. Keshav Prasad Goenka & Ors., reported in AIR 1962 SC 1694, in paragraph 12, the Court identified the legal position by holding to this effect "it is needles to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as protection for the safeguarding of the right of liberty of person or of property which the action might involve." In the case Mannalal Khetan vs. Kedar Nath Khetam, reported in AIR 1977 SC 536, a judgment of three Judges Bench, the Court held "negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. Non-compliance of provision even if not provides any offence, the provision of such test cannot be said as directory."17
The Hon'ble Single Judge after analyzing the decisions and paragraph 25(2) of the said Control order and in the backdrop of Article 14 of the Constitution of India opined that so far as the provisions of paragraph 25(2) of the West Bengal Urban Public Distribution System (Maintenance and Control) Order 2003 is concerned, the same is mandatory and it must be strictly observed.
Therefore, what stares us on the face is that two Joint Directors of the same department conducted the raid and one of them signed as a witness but there were no independent witnesses. The said fact is admitted in the affidavit filed on behalf of the appellant before the learned Trial Court.
The Hon'ble First Court has also found that law nemo debet judex in propria sua causa clearly applies in this case as it is a fundamental rule in the administration of justice that no man shall be a Judge of his own cause and a person cannot be a Judge in a Cause in which he is himself interested. These are well known concepts of law and if the facts of this case are analyzed in the background of these principles of law, it would be evident that it was the Department which conducted the raid, it was the Department which prepared the Seizure List, it was the Department which signed on the Seizure List and it was the Department which has attempted to initiate the Proceedings.
Under such circumstances the Hon'ble Single Judge held that there is a clear case of an extremely arbitrary exercise of power which is hit by Article 14 of 18 the Constitution of India and on such finding the Court allow the writ petition and quash the order dated 14th February, 2009 as well as the order dated 17th June, 2009.
In our considered opinion, the question is whether it is necessary to follow Section 100 of the Code of Criminal Procedure relating to search and seizure strictly when the authorities are taking steps in Para 25(2) of the Control Order on the given facts and in our opinion the Hon'ble Single Judge has correctly assessed the said provision and came to the conclusion that the guiding factor decides such question should depend on the facts and in our considered opinion as has been held by the Hon'ble Single Judge we only following the decisions of the Hon'ble Division Bench of this High Court held that the very purpose to insert paragraph 25(2) of the said Control Order was to ensure reasonableness and non-arbitrariness during the course of search and seizure. Therefore, the provision contained in the said order is beneficent not only to the State but also to the person who is being searched.
The provisions of Article 14 of the Constitution of India rendering an arbitrary action illegal. We come to the conclusion that paragraph 25(2) of the West Bengal Urban Public Distribution System (Maintenance and Control) Order 2003 is concerned, the same is mandatory and it must be observed strictly. 19
After considering the test enumerated in the decisions of the Supreme Court it appears to us that in the instant case in terms of Section 100 of the Criminal Procedure Code, it is incumbent upon the appellant to have the signature of the witnesses on the seizure list. It appears to us that there is no signature is appearing by an independent person. The said part has not been fulfilled which according to us has to be followed in terms of the control Order otherwise in our opinion it would open to flood gate of high handedness by the high officials and to act upon their sweet will. In our considered opinion where the statue has specifically directed to do an act that has to be performed in such manner and not otherwise. Hence, on these reasons we also find that the order so passed by His Lordship is correct and the contention of Mr. Bandyopadhyay has to be accepted by us.
Therefore, in view of our opinion as expressed by the Hon'ble Judge and affirming by us we hold that search and seizure which has been conducted falls within the meaning of arbitrariness and, therefore, we affirm the decision of the Hon'ble Single Judge and in our opinion the order so passed by His Lordship does not suffer any illegality and/or irregularity.
In our considered opinion, there is no merit in the appeal. Hence, we dismiss this appeal.
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Xerox certified copy of this order, if applied for, be supplied to the parties on usual undertakings.
( PINAKI CHANDRA GHOSE, J. ) I agree, ( ASIM KUMAR RAY, J. )